Act against Unfair Competition, Sec. 5(1),(2) No. 1 – Klimaneutral [Climate-Neutral]
Official headnotes (translated from the German by David Wright-Policepayeh)
a) The question whether advertising with environmental protection terms (here: ‘climate-neutral’) and labels is misleading, is – like health-related advertising – subject to strict requirements concerning the accuracy, unambiguity and clarity of the advertising claims (continuation of judgments of the Federal Supreme Court, 20 October 1988 – I ZR 219/87, BGHZ 105, 277 [juris para. 14] – Umweltengel; 20 October 1988 – I ZR 238/87, GRUR 1991, 546 [juris para. 26] = WRP 1989, 163 – Aus Altpapier; 4 October 1990 – I ZR 39/89, GRUR 1991, 550 [juris para. 13] = WRP 1991, 159 – Zaunlasur; 14 December 1995 – I ZR 213/93, GRUR 1996, 367 [juris para. 33 et seq.] = WRP 1996, 290 – Umweltfreundliches Bauen; 23 May 1996 – I ZR 76/94, GRUR 1996, 985 [juris para. 17] = WRP 1996, 1156 – PVC-frei).
b) It follows from the increased need to inform the relevant public about the meaning and content of environmental claims that strict requirements must be made concerning the explanatory information needed to avoid misleading advertising. In the case of advertising that uses an ambiguous environmental term, these requirements will generally only be met if the advertising itself clearly and unambiguously explains which specific meaning is relevant.
c) An explanation in the advertising itself is necessary when using the term ‘climate-neutral’, which includes both the avoidance of CO2 emissions and CO2 offsetting, in particular because CO2 reduction and the offsetting of CO2 emissions are not equivalent measures for achieving climate neutrality. Rather, the principle of prioritising reduction over offsetting applies.
Federal Supreme Court (Bundesgerichtshof), judgment of 27 June 2024 – I ZR 98/23
[…]
1. The defendant is ordered […] to refrain from using the following statements in the course of business
‘K. has been producing all products in a climate-neutral manner since 2021’
and/or
[Climate-neutral
product
C. P..com/14843-2012-1001]
as reproduced below:
[K. tastes good also to our climate.
K. has been producing all products in a climate-neutral manner since 2021.
Now also clearly indicated on each package.
Climate-neutral
product
C. P..com/14843-2012-1001]
[…]
Facts:
[1] The defendant manufactures fruit gum and liquorice products which are available from food retailers, kiosks and petrol stations. Carbon dioxide (CO2) is produced during the manufacture of the defendant’s products. The defendant supports climate protection projects by means of C. P. Deutschland GmbH (hereinafter: C. P.).
[2] In the ‘Lebensmittel Zeitung’ [‘Food Newspaper’] of 19 February 2021, the defendant advertised the confectionery it sells with the advertisement reproduced below. This advert contained the statement: ‘[the defendant] has been producing all products in a climate-neutral manner since 2021’ and a label bearing the words ‘climate-neutral’ and ‘product’ as well as the reference to a website ‘C. P..com’. The website could be accessed by entering the internet address given or by scanning a QR code that was also printed on the website, and contained information on the claimed climate neutrality.
[K. tastes good also to our climate.
K. has been producing all products in a climate-neutral manner since 2021.
Now also clearly indicated on each package.
Climate-neutral
product
C. P..com/14843-2012-1001]
[3] The plaintiff is the Centre for Combating Unfair Competition [Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.], which is registered in the list of qualified trade associations pursuant to Sec. 8b Act against Unfair Competition. It considers the use of the claim ‘climate-neutral’ in the advertisement to be unfair as being misleading and as withholding information essential for the transactional decision. The plaintiff claims that the public addressed by the advertisement in the ‘Lebensmittel Zeitung’ would assume that the production of the defendant’s products was emission-free, whereas the climate neutrality claimed in the advertisement was actually achieved at best by – disputed – offset payments. Even if it was assumed that climate neutrality was achieved through offset payments, the reference to this fact must be made in the advert itself. Information to be found only on the C. P. company’s website was not sufficient.
[4] The plaintiff applied for an order prohibiting the defendant, on pain of administrative penalties, from advertising with the statements
‘[the defendant] has been producing all products in a climate-neutral manner since 2021’
and/or
as shown below [followed by the insertion of the advertisement reproduced above].
[5] The plaintiff also claimed reimbursement from the defendant of an all-in warning fee of EUR 374.50 plus interest.
[6] The regional court dismissed the action (Kleve Regional Court, judgment of 22 June 2022 – 8 O 44/21, juris). The plaintiff’s appeal was dismissed (Düsseldorf Superior Regional Court, WRP 2023, 1123). The plaintiff continues to pursue its claims with the appeal on the law, leave to file which was granted by the appeal court, and which the defendant requests be dismissed.
Grounds:
[7] A. The appeal court ruled that the use of the term ‘climate-neutral’ was not misleading and that there was no unfair withholding of material information. It gave the following reasons:
[8] With the contested statement ‘[the defendant] has been producing all products in a climate-neutral manner since 2021’ in the contested advertisement, the defendant did not make the inaccurate claim that no CO2 is released during the manufacture of its products. The adequately attentive and reasonably well-informed consumer, who is the target here, understands the term ‘climate-neutral’ rather in the sense of the balanced offsetting of the company’s CO2 emissions. The plaintiff had not substantiated that the CO2 emissions were not in balance.
[9] Nor did the challenged advertisement deprive the targeted consumers of any information essential for their transactional decision within the meaning of Sec. 5a(2) Act against Unfair Competition old version and Sec. 5a(1) Act against Unfair Competition. It was true that the advertising of a company or its products with an alleged climate neutrality could have a considerable influence on the purchase decision. There was also an interest in providing information about the fundamental circumstances of the company’s claim to climate neutrality, in particular the information as to whether climate neutrality was (also) achieved through its own savings measures or only through the purchase of CO2 certificates or by supporting third-party climate projects. It was therefore necessary to clarify whether the climate neutrality claimed in the advertising was achieved in whole or in part through savings or offsetting measures. It was also necessary to clarify whether certain emissions had been excluded from the CO2 balance. However, the advertising in question fulfilled these requirements. Admittedly, the required information was only provided when the reader of the advert accessed the said ‘C. P..com’ website. However, this was sufficient to inform consumers because, pursuant to Sec. 5a(5) No. 1 Act against Unfair Competition old version and Sec. 5a(3) No. 1 Act against Unfair Competition, consideration was to be given to the limitations of space of the chosen means of communication and there was not enough space in a newspaper advert for more detailed information on the type and scope of any offsetting payments. It was much more reasonable to expect the newspaper reader to visit a readily accessible website for more detailed information.
[10] B. The plaintiff’s appeal on the law is successful. The contested judgement is set aside and the regional court judgment is amended, and judgment is rendered against the defendant according to the petitions. Contrary to the appeal court’s assumption, the plaintiff is entitled to injunctive relief for misleading practice under Sec. 8(1) sentence 1, Sec. 3(1), Sec. 5(1) Act against Unfair Competition. There is therefore no need to determine whether the appeal court’s arguments with which it denied a claim for injunctive relief on the grounds of a breach of an information obligation pursuant to Sec. 5a(2) Act against Unfair Competition old version and Sec. 5a(1) Act against Unfair Competition, stand up to legal scrutiny.
[11] I. The plaintiff’s claim for injunctive relief for misleading information under Sec. 8(1) sentence 1, Sec. 3(1), Sec. 5(1) Act against Unfair Competition cannot be denied on the grounds given by the appeal court.
[12] 1. However, the appeal court examined the application for injunctive relief based on the aspect of misleading behaviour without taking account of the change in Sec. 5 Act against Unfair Competition, the applicable statutory provision in the light of the facts of the case, that took place between the time of the conduct complained of and the court’s decision.
[13] a) The claim for injunctive relief based on the risk of repetition is only justified if the conduct complained of was anti-competitive both under the law applicable at the time it was carried out and under the law applicable at the time of the appeal decision (established judicial practice; see as an example judgment of the Federal Supreme Court, 13 July 2023 – I ZR 60/22, GRUR 2023, 1710 [juris para. 18] = WRP 2024, 72 – Eigenlaborgewinn, with further references).
[14] b) After the publication of the contested advertisement in February 2021, the provision of Sec. 5 Act against Unfair Competition was revised (cf. Art. 1 No. 2 of the Act to Strengthen Consumer Protection in Competition and Trade Law of 10 August 2021, Federal Law Gazette I p. 3504; cf. also the Act Implementing the Representative Actions Directive of 8 October 2023, Federal Law Gazette I p. 1 to 39; Act against Unfair Competition new version). This does not result in a change in the legal situation that is relevant to the dispute. The previous provision of Sec. 5(1) Act against Unfair Competition old version has the identical wording as Sec. 5(1) and (2) Act against Unfair Competition new version (see judgment of the Federal Supreme Court, GRUR 2023, 1710 [juris para. 19] – Eigenlaborgewinn, with further references). The amendment to the provision of Sec. 8(3) No. 2 Act against Unfair Competition with effect from 1 December 2021 through the Act to Strengthen Fair Competition of 26 November 2020 (Federal Law Gazette I p. 2568) is not relevant in the case in dispute due to the transitional provision of Sec. 15a(1) Act against Unfair Competition.
[15] 2. Pursuant to Sec. 5(1) sentence 1 Act against Unfair Competition, anyone who engages in a misleading commercial practice which is suited to causing the consumer or other market participants to take a transactional decision that they would not have taken otherwise is acting unfairly. According to Sec. 5(1) sentence 2 Act against Unfair Competition old version/Sec. 5(2) Act against Unfair Competition new version, a commercial practice is misleading if it contains false statements (case 1) or other information suited to deception regarding the circumstances then listed (case 2); according to No. 1 of these provisions, this also includes information on the main characteristics of the goods, including the method of manufacture and the benefits of the goods. The benefits of a product are to be understood as positive characteristics that result from its design or are associated with its use (judgment of the Federal Supreme Court, GRUR 2023, 1710 [juris para. 20] – Eigenlaborgewinn, with further references). The main product-related characteristics also include the information at issue here concerning the method of manufacture of the product and its effects on the environment as well as concerning measures with which such effects are fully or partially offset.
[16] 3. The appeal court assumed that the defendant had not made the inaccurate claim that no CO2 was released during the manufacture of its products by stating in the contested advertisement that ‘[the defendant] has been producing all products in a climate-neutral manner since 2021’. The average consumer would instead understand this term in the sense of the offsetting of the company’s CO2 emissions. They were aware that neutrality with regard to CO2 emissions could be achieved through both avoidance and offset measures (e.g. certificate trading). This was evident from the fact that goods and services such as air travel were also advertised as ‘climate-neutral’, although these could not be provided emission-free and their climate neutrality could only be achieved through offsetting. In the contested advertising, this interpretation was supported by the reference to the ‘C. P..com’ website. The relevant public would ask itself why cooperation with a ‘climate partner’ was necessary if not for offsetting. Where the plaintiff disputed that the defendant actually effected sufficient offsetting measures, it was unclear whether the plaintiff wanted to argue that no measures had been provided at all or that these were insufficient or unsuitable for offsetting. The plaintiff had provided no evidence of a complete lack of offsetting.
[17] 4. This reasoning cannot be used to deny misleading statements within the meaning of Sec. 5(1) Act against Unfair Competition (see B I 4 a). The appeal court did not take into account the fact that special legal standards apply to the assessment of environmental advertising statements (see B I 4 b). Moreover, its findings on the perception of the relevant public do not stand up to legal scrutiny (see B I 4 c).
[18] a) According to the established judicial practice of the Federal Supreme Court, there is a misleading practice within the meaning of Sec. 5(1) Act against Unfair Competition if the interpretation that a statement arouses in the public to whom it is addressed does not correspond to the actual circumstances. What matters is the overall impression the commercial practice evokes in the relevant public (judgment of the Federal Supreme Court, GRUR 2023, 1710 [juris para. 22] – Eigenlaborgewinn, with further references).
[19] The appeal court assumed that the assessment of misleading information depended on the understanding of a reasonably attentive, averagely informed consumer who was aware of the situation. Admittedly, the ‘Lebensmittel Zeitung’ was aimed at the consumer goods industry and thus at a specialised audience. However, this audience had such a ‘reach’ in the food industry that an interpretation of the term ‘climate-neutral’ at issue that differed from that of the average consumer was unlikely.
[20] This assessment is accepted by the appeal on the law as being in its favour and does not indicate any legal error.
[21] b) However, the appeal court did not take into consideration that special legal standards apply to the assessment of environmental advertising claims.
[22] aa) In order to determine the meaning of a statement, it is necessary to ask how the averagely informed and reasonable consumer would understand an advertisement if they paid appropriate attention to the situation. This depends on the circumstances under which the statement is perceived and on the significance that the advertised goods or services have for them (established judicial practice; see as example judgment of the Federal Supreme Court, 11 October 2017 – I ZR 78/16, GRUR 2018, 431 [juris para. 27] = WRP 2018, 413 – Tiegelgrösse, with further references). These criteria relating to the perceptual situation and the subject matter of the advertising determine the requirements that the prohibition of misleading advertising places on the accuracy, unambiguity and clarity of an advertising statement.
[23] (1) It is consistent with the established judicial practice of the Federal Supreme Court that particularly strict requirements must be applied to health-related advertising in view of the high level of protection afforded to health. On the one hand, this applies because misleading health claims can pose considerable risks to the health of individuals and the general public (judgments of the Federal Supreme Court, 3 May 2001 – I ZR 318/98, GRUR 2002, 182 [juris 13 para. 44] = WRP 2002, 74 – Das Beste jeden Morgen; 6 February 2013 – I ZR 62/11, GRUR 2013, 649 [juris para. 15] = WRP 2013, 772 – Basisinsulin mit Gewichtsvorteil; 11 February 2021 – I ZR 126/19, GRUR 2021, 746 [juris para. 32] = WRP 2021, 604 – Dr. Z; judgment of 9 December 2021 – I ZR 146/20, GRUR 2022, 399 [juris para. 62] = WRP 2022, 426 – Werbung für Fernbehandlung; on the principle of strictness applicable to advertising with health claims, see also judgment of the Federal Supreme Court, 5 November 2020 – I ZR 204/19, GRUR 2021, 513 [juris para. 17] = WRP 2021, 327 – Sinupret). The particularly strict requirements for the accuracy, unambiguity and clarity of the advertising statement are also justified by the fact that consumers place a high value on their own health, and that experience has shown that advertising measures linked to health are therefore particularly effective (judgments of the Federal Supreme Court, 27 February 1980 – I ZR 8/78, GRUR 1980, 797 [juris para. 19] = WRP 1980, 541 – Topfit Boonekamp, with further references; GRUR 2002, 182 [juris para. 44] – Das Beste jeden Morgen).
[24] (2) According to the judicial practice of the Federal Supreme Court, these strict requirements for the accuracy, unambiguity and clarity of the advertising statement to which health-related advertising is subject, also as a rule apply to advertising with environmental protection terms and symbols (see judgments of the Federal Supreme Court, 20 October 1988 – I ZR 219/87, BGHZ 105, 277 [juris para. 14] – Umweltengel; 20 October 1988 – I ZR 238/87, GRUR 1991, 546 [juris para. 26] = WRP 1989, 163 – Aus Altpapier; 4 October 1990 – I ZR 39/89, GRUR 1991, 550 [juris para. 13] = WRP 1991, 159 – Zaunlasur; 14 December 1995 – I ZR 213/93, GRUR 1996, 367 [juris para. 33 et seq.] = WRP 1996, 290 – Umweltfreundliches Bauen; 23 May 1996 – I ZR 76/94, GRUR 1996, 985 [juris para. 17] = WRP 1996, 1156 – PVC-frei).
[25] Since the end of the 1980s, this Court has assumed that, as a result of the general recognition of the environment as a valuable asset in need of protection, an increased environmental awareness has developed and that consequently the public often favours goods and services whose particular environmental compatibility is pointed out (BGHZ 105, 277 [juris para. 14] – Umweltengel; judgments of the Federal Supreme Court, GRUR 1991, 550 [juris para. 13] – Zaunlasur; 18 October 1990 – I ZR 113/89, BGHZ 112, 311 [juris para. 20] – Biowerbung mit Fahrpreiserstattung; see also GRUR 2018, 431 [juris para. 35] – Tiegelgröße). Such consumer behaviour is also encouraged by the fact that advertising measures that are linked to environmental protection prove to be particularly suitable for appealing to people’s emotional areas, ranging from concern for their own health to a sense of responsibility for future generations (BGHZ 105, 277 [juris para. 14] – Umweltengel; judgments of the Federal Supreme Court, GRUR 1991, 550 [juris para. 13] – Zaunlasur; BGHZ 112, 311 [juris para. 20] – Biowerbung mit Fahrpreiserstattung; GRUR 1996, 367 [juris para. 33] – Umweltfreundliches Bauen; on the obligation of the state to establish climate neutrality resulting from Art. 20a Constitution, see BVerfGE 157, 30 [second headnote and juris para. 198]; see also judgment of the ECtHR, 9 April 2024 – 53600/20 [Verein KlimaSeniorinnen Schweiz and others v. Switzerland], ESG 2024, 145). It is not uncommon for there to be uncertainty as to the meaning and content of the terms used – such as ‘environmentally friendly’, ‘eco-friendly’, ‘gentle on the environment’ or ‘organic’. Furthermore, the advertised products are as a rule not more or less environmentally friendly or less environmentally destructive than other goods in every respect, but usually only in certain aspects (BGHZ 105, 277 [juris para. 14] – Umweltengel). In addition, the general public usually has little factual knowledge of the scientific interrelationships and interactions (judgment of the Federal Supreme Court, GRUR 1996, 367 [juris para. 33] – Umweltfreundliches Bauen).
[26] It follows from these circumstances that the risk of being misled is particularly high in the area of environmental advertising and that there is an increased need to inform the relevant public about the meaning and content of the terms and signs used. Strict requirements must therefore generally be placed on the explanatory information required to avoid misleading practice, which are determined in each individual case according to the type of product and the degree and extent of its ‘environmental friendliness’. If the required explanatory information is missing in the advertising or is not clearly and visibly emphasised, there is a particularly high risk that the target public will be misled as to the nature of the product offered and that it will be influenced in its purchase decision (BGHZ 105, 277 [juris para. 14] – Umweltengel; judgment of the Federal Supreme Court, GRUR 1991, 550 [juris para. 14] – Zaunlasur). Finally, account must be taken of the general principle that the advertiser must accept the different meanings where his advertising statement is ambiguous (judgment of the Federal Supreme Court, 8 March 2012 – I ZR 202/10, GRUR 2012, 1053 [juris para. 17] = WRP 2012, 1216 – Marktführer Sport, with further references).
[27] bb) The appeal court did not take these principles into account in its assessment of misleading practice pursuant to Sec. 5(1) Act against Unfair Competition.
[28] (1) The starting point of its examination was rightly the assumption that the statement in question, ‘[the defendant] has been producing all products in a climate-neutral manner since 2021’, and the contested label are environmental advertising. Furthermore, it correctly found that the term ‘climate-neutral’ encompasses both the avoidance of CO2 emissions and CO2 offsetting and therefore several meanings can be considered (see also Art. 2(1) and Art. 4(1) and recital 20 of Regulation (EU) 2021/1119 establishing the framework for the realisation of climate neutrality (‘European Climate Law’); for further measures to achieve climate neutrality encompassed by the meaning of the word, see also Sec. 15(2) sentences 1 and 2 Consumer Protection Act).
[29] (2) However, it cannot be inferred from the appeal judgement that the appeal court recognised that strict requirements for the accuracy, unambiguity and clarity of the advertising statement apply to the assessment of advertising with environmental protection terms and signs in the case at issue. It did not take into consideration that in the present case there is an increased need to inform the target public about the meaning and content of the term ‘climate-neutral’ and that strict requirements must be placed on the explanatory information necessary to avoid being misleading. The appeal court therefore erred in law by failing to take into account that these requirements will normally only be met in the case of advertising that uses an ambiguous environmental term if the advertising itself clearly and unambiguously explains which specific meaning is relevant. In the case at issue, such an explanation is particularly necessary to achieve clarification because the reduction and the offsetting of CO2 emissions are not equivalent measures for achieving climate neutrality. Rather, the principle of prioritising reduction over offsetting applies.
[30] c) The assessment made by the appeal court to determine the public opinion likewise does not stand up to legal scrutiny.
[31] aa) The determination of the public opinion is only subject to a limited review on appeal on the law as to whether the appeal court has exhausted the facts without procedural error and whether the assessment is in accordance with the laws of logic and the general principles of experience (established judicial practice; see as examples judgments of the Federal Supreme Court, 25 June 2020 – I ZR 96/19, GRUR 2020, 1226 [juris para. 18] = WRP 2020, 1426 – LTE-Geschwindigkeit; GRUR 2021, 746 [juris para. 43] – Dr. Z; 12 May 2022 – I ZR 203/20, GRUR 2022, 925 [juris para. 18] = WRP 2022, 856 – Webshop Awards; Federal Supreme Court, GRUR 2023, 1710 [juris para. 22] – Eigenlaborgewinn, in each case with further references). Since this is not a finding of fact in the strict sense, but rather the application of specific empirical knowledge, an error of law may also consist in the fact that the public opinion thus determined is contrary to experience (established judicial practice; see as examples judgments of the Federal Supreme Court, 29 July 2021 – I ZR 114/20, GRUR 2021, 1315 [juris para. 17] = WRP 2021,1444 – Kieferorthopädie; 7 April 2022 – I ZR 217/20, GRUR 2022, 844 [juris para. 19] = WRP 2022, 715 – Kinderzahnarztpraxis). The appeal court’s assessment does not meet these requirements.
[32] bb) The appeal court did not pay sufficient attention to the wording of the contested statement and the context of the label complained of and thus did not fully exhaust the factual material.
[33] (1) However, the appeal court correctly assumed that the term ‘climate-neutral’ is ambiguous because it can be understood on the one hand as the avoidance of CO2 emissions and on the other hand in the sense of a balanced offsetting of the company’s CO2 emissions. Both possible meanings are consistent with the literal meaning of the term. Nor is the appeal court’s assumption that the average consumer is aware that climate neutrality can be achieved in practice both by avoiding emissions and by offsetting measures (e.g. certificate trading) contrary to experience (see also OLG Schleswig, GRUR 2022, 1451 [juris para. 26 et seq.]; OLG Frankfurt a.M., GRUR 2023, 177 [juris para. 29]; Weller, Hößl and Seemann, ZIP 2024, 330, 337 to 339), nor does it reveal any other legal errors.
[34] (2) However, the appeal court did not take into account the context of use of the term ‘climate-neutral’ in the advertisement that the plaintiff made the subject of its application for injunctive relief relating to the specific form of infringement. In the advertisement at issue, the advertising claim ‘climate-neutral’ does not refer to the defendant’s company, but expressly to the production of the products it sells (‘[the defendant] has been producing all products in a climate-neutral manner since 2021’). The same applies to the label that is also challenged. The plaintiff also attacked this with reference to the advert as a whole as a specific form of infringement and thus in the context of the claim relating to production. In addition, the term ‘climate-neutral’ in the label itself expressly refers to the ‘products’.
[35] (3) Contrary to the appeal court’s assessment, an understanding of the term ‘climate-neutral’ in the sense of a company-related claim to offset does not result from the reference to the website ‘C. P..com’ in the contested label. The reasoning given by the appeal court in this respect, namely that the target public would ask itself why cooperation with a ‘climate partner’ was necessary if not for offsetting, is contrary to experience with its narrowing down to offsetting as being the only possible meaning. In this context, the appeal court again did not take into account the fact that the climate neutrality promised in the advert has an explicit reference to the production of the defendant’s goods, and that therefore it was obvious to think of measures to reduce CO2 in the production process. In addition, the appeal court did not find any circumstances that could indicate that manufacturers of foodstuffs would only call on the help of a company referred to as ‘C. P.’ for the subsequent offsetting of the CO2 emissions caused during production. In fact, life experience suggests that the contracting of a partner company for the purpose of climate protection can – at the very least – also include the installation of filter systems in production, support in the establishment of climate-friendly manufacturing processes, the supply of climate-optimised raw materials or a combination of these measures to avoid CO2 emissions during the production process.
[36] (4) Whether the consumer is informed about the partner company’s offsetting services by visiting its website is irrelevant to the question of misleading advertising which – as in the case at issue – does not itself contain any informative reference to the type and nature of the service provided by ‘C. P.’. According to the strict standards applicable to environmental advertising regarding the accuracy, unambiguity and clarity of such an advertising statement (cf. para. 24), informative references made outside the advertising itself, which consumers have to determine by their own activity, are not sufficient. The aspect of the spatial restriction of the means of communication chosen by the advertiser, which the appeal court referred to with reference to Sec. 5a (5) No. 1 Act against Unfair Competition, old version, and Sec. 5a(3) No. 1 Act against Unfair Competition when examining the breach of the duty to inform, is irrelevant for the examination of misleading statements pursuant to Sec. 5(1) Act against Unfair Competition (Feddersen in Köhler, Bornkamm and Feddersen, UWG, 42nd edn, Sec. 5a para. 2.57; on Art. 6(1) of Directive 2005/29/EC on unfair commercial practices, cf. judgment of the CJEU, 26 October 2016, GRUR 2016, 1307 [juris para. 42] = WRP 2017, 31 – Canal Digital Danmark). Moreover, it was neither established by the appeal court nor is it otherwise apparent that, for reasons of space, it was not possible to include in the advertisement at issue clearly and unambiguously the explanatory notice necessary to avoid misleading information that the activities of ‘C. P.’ are limited to the offsetting of the CO2 emissions incurred in the production of the products and whether these emissions are offset in full or to a certain percentage.
[37] II. On the plaintiff’s appeal on the law, the contested judgement must therefore be set aside. This Court must decide on the matter itself because the judgement is only set aside due to a violation in the application of the law to the established factual constellation and, in the light of the latter, the matter is ready for a final decision (Sec. 563(3) Code of Civil Procedure).
[38] 1. The claim for injunctive relief asserted is justified pursuant to Sec. 8(1) sentence 1, Sec. 3(1), Sec. 5(1) Act against Unfair Competition on the basis of the undisputed facts and the findings of the appeal court.
[39] a) The contested information is incorrect and also suitable for deception.
[40] As has been explained, the contested claim is ambiguous and, since the defendant has not clearly and unambiguously explained in the advertising itself the concrete meaning, namely the mere offsetting of CO2, also includes, according to the public’s perception, the promise of CO2 avoidance in relation to the production process. This statement does not correspond to the facts because CO2 is indisputably produced during the manufacture of the defendant’s products.
[41] b) Logically from its legal standpoint, the appeal court made no statements on the relevance of the misleading practice. This must be affirmed in the case in dispute.
[42] aa) According to Sec. 5(1) sentence 1 Act against Unfair Competition, a misleading commercial practice is only unfair if it is likely to induce the consumer or other market participant to take a transactional decision that he or she would not have taken otherwise.
[43] bb) As part of its examination of an infringement of Sec. 5a Act against Unfair Competition, the appeal court assumed that climate protection was an increasingly important topic for consumers that dominates both the news and everyday life and that the advertising of a company or its products with a supposed climate neutrality could therefore have considerable significance for the purchase decision. This assessment is in line with the principles already set out on the significance of environment-related advertising claims (see paras. 24 to 26) and does not reveal any other errors of law.
[…]
Translated from the German by David Wright-Policepayeh,
Kilb, Austria.
